Dive Brief:
- Apex Fintech Solutions violated the National Labor Relations Act when it fired a worker for posts he made on LinkedIn complaining about his company’s “culture of discrimination” against White men, National Labor Relations Board Administrative Law Judge Arthur Amchan determined Friday.
- The worker, who took issue with statements made at a diversity, equity and inclusion meeting, said Apex had “allowed outright hate to proliferate as a demonstration of what they think DEI is,” per the judge’s opinion. The company asked him to remove “false” and “defamatory” statements but did not specify what they were, and fired him shortly after he asked it to clarify. It later initiated a defamation lawsuit against the worker, although that effort was eventually abandoned.
- The case is among the latest legal actions to involve a majority-group plaintiff pushing back against DEI practices, although it pursued the claim by applying labor law, rather than nondiscrimination law like many others have done.
Dive Insight:
In his analysis, Amchan found multiple NLRA violations.
For one, he said, there was “no question” Apex was aware of the protected concerted activity the worker had engaged in, as he “clearly sought to enlist other employees in his crusade against what he perceived as Respondent’s discrimination against males.” In his LinkedIn post, for example, the worker encouraged employees to file a claim with the U.S. Equal Employment Opportunity Commission.
The NLRA protects a variety of actions deemed “concerted activity,” including talking with co-workers about wages, benefits or working conditions; circulating a petition asking for better hours; joining co-workers to talk to an employer; and more.
“A single employee may also engage in protected concerted activity if he or she is acting on the authority of other employees, bringing group complaints to the employer's attention, trying to induce group action, or seeking to prepare for group action,” according to NLRB’s website.
In addition, Amchan found Apex violated the NLRA by attempting to limit his complaints to the “proper channels,” as one HR representative said in an email. While the representative demanded confidentiality while investigating the worker’s complaints, Apex could not point to why this was required to protect the investigation, such as protecting the safety of witnesses or maintaining evidence.
Apex also violated the NLRA by pursuing legal action against the worker, Amchan said, as the action would have a chilling effect on other workers who might want to engage in protected activity.
Finally, Amchan found Apex violated the NLRA by having its workers sign an employment agreement with restrictive clauses, such as one with a “proprietary information” definition that sought to prevent employees from sharing materials in company manuals and training that would have been relevant to the act. It further violated the NLRA “in stating that whatever the company reasonably regards as confidential is proprietary, thus leaving employees to guess what information is or is not proprietary and confidential,” Amchan said.
Amchan ordered Apex to reinstate the worker and make him whole for any back pay and other benefits he missed out on. It must also scrub the worker’s discharge from its files, revise its employment agreement and post a notice informing employees of their NLRA rights.
Apex told HR Dive it does not comment on pending legal matters.
